Abstract

Excerpted From: Katherine Hanson, Arizona v. Navajo Nation and the Fight for Natural Resources in Indian Country, 30 UC Law Environmental Journal 151 (May, 2024) (200 Footnotes) (Full Document)

As resources continue to become more scarce in our changing world, disadvantaged communities are likely to continue to be the most heavily impacted. This effect is especially acute in cases pertaining to water. Tribes in the United States face a unique set of challenges due to intersecting domains of law across state, federal, and tribal boundaries. As sovereign nations within a colonizer country, tribes will likely continue to face an unwelcoming legal arena in which battles for water and other resources are ever more hotly debated.

One such case was the 2023 Supreme Court decision in Arizona v. Navajo Nation, a water rights dispute regarding what obligations the United States (U.S.) has to the Navajo Nation's rights to water. The Court's analysis can be divided into three main issues: (1) what the Navajo were requesting; (2) how best to characterize that request; and (3) how broadly treaty obligations should be interpreted. This Article argues that the Court held incorrectly against the Navajo on all three counts.

Regarding the first and second issues, the Court incorrectly decided against the Navajo by inaccurately interpreting the Navajo's request--to compel the U.S. to assess their water rights--and instead, focused solely on whether the U.S. had an affirmative duty to provide that water. Unsurprisingly, the Court was reluctant to impose on the United States any sort of affirmative duty to provide water for the Tribe, especially in a region defined by its water scarcity. Regarding the third issue, the Court set a concerning precedent by failing to apply the “Indian canons” of treaty interpretation and failing to uphold the trust relationship between the United States and the tribes. This led to a very narrow interpretation of the 1868 Treaty with the Navajo Nation. Without an assessment of the Navajo's rights, the consequence of the Court's decision on the third issue is that tribes now have little recourse to intervene on their own behalf to defend their access to natural resources and enforce the treaties upon which their rights are based.

This Article begins with an overview of the trust relationship the U.S. has with tribes, the implied water rights doctrine, and a brief history of the Navajo Nation and their experiences with water and the U.S. These sections provide important background for understanding the Court's decision in Arizona v. Navajo Nation. The Article will then turn to the case itself and provide a brief overview of the preceding litigation, a breakdown of the arguments and the opinion of the Court, and an analysis of why the Court decided incorrectly in that case. Next, the Article will compare the Court's decision in Navajo Nation to the Ninth Circuit's decision in United States v. Washington. This comparison will highlight the Ninth Circuit's broader interpretation of treaty rights, which ensures tribes are able to thrive, in contrast to the Supreme Court's narrow interpretation in Navajo Nation. In particular, the comparison is critical to the discussion because it illustrates the Court's reluctance around defining tribal rights for scarce resources when treaties are silent as to those rights, which sharply contrasts with the Ninth Circuit's more expansive use of the Indian Canons to infer implied rights in favor of tribes. Finally, the paper will discuss the implications of the Navajo Nation decision, which leaves tribes with unquantified rights and little recourse to protect water and potentially other resources, over which the U.S. exercises considerable control.

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If one thing is clear in this case, it is that the Court is concerned about the increasing issues surrounding water scarcity and does not feel it is the best body to adequately address those concerns. However, this is cause for apprehension, as tribal communities get left in the dust while state rights to resources become more clearly defined. Although the Court left the task of defining the Navajo's rights to the other branches, and left it to the Navajo themselves to assert if the Legislature and Executive branches fail to take action, the Navajo cannot act without knowing what the extent of their rights are. The reality remains that “[t]he [Navajo N]ation is the largest Native American tribe on the Colorado River without defined water rights.”

The Navajo are not asking for the moon. They only ask for their rights held in trust by the United States to be assessed by the federal government. If the U.S. has interfered with or misappropriated those rights, then it should be held accountable by developing a plan to remedy that interference. The Court has an obligation to compel the federal government to do so. An assessment would not lead to an endless road of affirmative duties for the U.S., but instead, would allow the Navajo Nation to negotiate more effectively with states, sue on behalf of its water rights, and develop a plan for obtaining water based on those rights. The United States is obligated to uphold the promises it made under the Treaty of 1868 by assessing the Navajo's water rights to determine if there is water sufficient to fulfill the purpose of the reservation: to be a permanent home for the Navajo people.